The Topps Company recently released a set of “American Heroes” trading cards which include well-known politicians, actors, athletes, scientists and events. Famed astronaut Buzz Aldrin attempted to block the release of certain cards believing the cards improperly incorporate his name, likeness and image in a commercial manner. The cards in question include the famous “Visor Shot” image of Aldrin on the outside of the cardboard box packaging, a mission card, and a “signature cut” card which contains original signatures taken from other documents.
Aldrin brought the suit in a California Federal Court alleging violations of California’s common law and statutory rights to publicity, among other claims. Topps moved to strike the complaint under California’s anti-SLAPP (Strategic Lawsuits Against Public Participation) statute which allows a defendant to strike a complaint that attempts to restrict their right of free speech in connection with a public issue.
When examining the special motion to strike, the court must first determine “whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity.” The court must then decide whether the plaintiff has evidenced that the activity is not protected. If it is found that the activity is protected, and the plaintiff cannot show a legally sufficient complaint supported by a prima facie showing of facts, the cause of action should be stricken under the anti-SLAPP statute.
In this action, the cards were found to be protected speech relating to a public issue. The court distinguished this situation from prior cases in which the use of a prominent person’s name or likeness were found to constitute unprotected commercial speech. Here the court focused on the fact that the cards convey information about historically significant achievements, propose no commercial transaction, and are not advertisements for any related or unrelated products. Additionally, the court reasoned that the “Visor Shot” on the outside packaging is a “mere adjunct” to the cards themselves, and therefore does not constitute an advertisement. The court rejected Aldrin’s claim that the cards were no more than commercial merchandise.
The court held that Topps met its burden of demonstrating that the cards are protected speech, whereas Aldrin did not meet his burden of refuting that status. As a result, the Topps motion to strike Aldrin’s complaint was granted. The case is currently being appealed.
With its focus on trading cards, the case may reflect a shifting line between what is viewed as purely pop commercial merchandise even simple advertisement on the one hand — and informational even educational protected speech on the other. Though trading cards have existed for generations, protected speech here seems less bound to traditional media in an age where youth increasingly get their information through pop commercial media such as videogames, social media, comics, etc.